2022-TIOL-1432-HC-AHM-CUS
Adani Wilmar Ltd Vs UoI
Cus - The petitioner is engaged in manufacture of different types of edible oils, acid oil, soya gum, deo distillate, etc. - On 27.02.2018 the vessel arrived with palm edible oil at Mundra anchorage - On 28.02.2018 the Vessel MT CHEMROAD SIRUS VO2 berthed and entry was granted at 15:10 hours - On 01.03.2018 the petitioner filed bill of entry with regard to the said goods which were assessed to 40% in term of serial No. 65 of the Notification No. 50/2017-Cus., dated 30.06.2017 as amended by Notification No. 87/2017, dated 17.11.2017 - The duty was paid at 17.07 hours - On 06.03.2018, Notification No. 29/2018-Cus., dated 01.03.2018 enhancing the rate of duty from 40% to 54% was digitally signed - On 07.03.2018, the bill of entry was unilaterally reassessed to a higher rate of duty at 54% under Section 17(4) of the Act and the petitioner paid enhanced rate of duty of Rs. 1,37,46,173/- under protest vide its letter dated 06.03.2018 - On 19.06.2018, the petitioner challenged the reassessment of the bill of entry - On 21.01.2019, Commissioner of Appeal passed the order in appeal without going into the merits on the ground that he did not have power to condone the delay caused in filing the appeal under Section 128 of the Act as the same was filed after 90 days from the date of communication of order, therefore, the present petition. Held: The only issue which this Court is required to consider is as to whether the Notification No. 29/2018-Cus., dated 01.03.2018 will be effective from 01.03.2018 or 06.03.2018 on the day on which it has been digitally signed - What is effective date of Notification is a question no longer res integra - The Apex Court in case of G.S. Chatha Rice Mills = 2020-TIOL-157-SC-CUS-LB held in categorical terms that the revised rate of duty apply to bills of entry presented subsequent to uploading of Notification in e-Gazette form - It is thus quite clear that when Section 25 of the Act empowers the Central Government to exempt either totally or subject to certain conditions from the whole or any part of the customs duty leviable thereon by a Notification in the Official Gazette, it has also the powers to modify and cancel - Decision of G.S. Chatha Rice Mills (supra) squarely covers the issue - The Ministry of Urban Development discontinued the practice of physical printing and replaced it with electronic Gazette on 30.09.2015 in compliance with the provision of Section 8 of the IT Act - Thus, it switched over to exclusive e-publishing of the Government of India Gazette Notification on its official website with effect from 01.10.2015 and has done away with the physical printing of Gazette Notification - The date of publishing shall be the date of e-publication on official website by way of electronic Gazette in respect of Gazette Notification - Apex Court has concluded that the time of publication in digital mode would be the date and time on which it would come into effect - The rate of duty as held by the Apex Court in case of G.S. Chatha Rice Mills (supra) shall have to be what was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 of the Act - The power of re-assessment under Section 17(4) of the Act could not have been exercised as it was not a case of incorrect self assessment of duty - The duty was correctly assessed at the time of self assessment in terms of the duty which was in force on that date and at the time - The subsequent publication of the Notification bearing 29/2018-Cus., dated 01.03.2018 amending entry No. 65 of table notification No. 50/2017, dated 30.06.2017 would not have any sustained basis for re-assessment - The Notification could not be said to have been published without declaration form or digital signature certificate - Only after the declaration form and documents are signed digitally that they can be uploaded for e-publishing which has been done on 06.03.2018 at 19:15 hours - Therefore, the effective date of Notification in terms of Section 25(4) of the Act is the date of its publication in Official Gazette in e-mode on 06.03.2018 and the Notification, therefore, cannot be said to have come into force on 01.03.2018 and enhanced rate of duty by way of Notification No. 29/2018-Cus., dated 01.03.2018 surely would not be, therefore, applicable - The petitioner would be entitled to pay only 40% of the duty which was applicable at the time of presenting the bills of entry for home consumption and not 54% under Section 17(4) of the Act - Petitions are allowed quashing and setting aside the orders of re-assessment of the bills of entry - The respondents are also directed to refund the differential amount of Rs.1,44,31,505/- being the duty paid by petitioner within a period of eight weeks with interest at the rate of 6% p.a. from the date of deposit till the date of payment - The order-in-appeal dated 21.01.2019 is also quashed and set aside: High Court [para 8.1, 9, 9.1, 11, 13, 14, 15, 16]
- Petitions allowed: GUJARAT HIGH COURT
2022-TIOL-1049-CESTAT-KOL
Nurture Marketing Pvt Ltd Vs CCGST & CE
ST - Appellant is in appeal against impugned order whereby Commissioner (A) has allowed the appeal filed by Department and imposed penalty under sections 77 and 78 of Finance Act, 1994 - It is submitted that issue is no more res integra in view of decision of Tribunal in case of CHARANJEET SINGH KHANUJA 2015-TIOL-1205-CESTAT-DEL wherein it was held that distributor is required to pay Service Tax on Commission earned by it on the basis of volume of purchase of Amway products made by its sales group, that is, the group of Second level of Distributor appointed by Amway/Britt, who have been sponsored by distributor - It was submitted that commission in respect of volume purchase by Second Level of distributor for periods of 2006-07 to 2010-11 earned by appellant is to the tune of Rs. 1,22,46,991/- and the Service Tax on the same was Rs. 13,94,933/- and the same has been paid along with interest before issuance of SCN and therefore proceedings should have been concluded - Proceedings should have been concluded before issuance of SCN - Penalties imposed are set aside and do not interfere with Service Tax as confirmed in Adjudication Order - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1048-CESTAT-AHM
Perfect Ready Mix Concrete Vs CCE & ST
ST - As regard the demand of Service tax under work contract service, entire case of department is based only on contract between appellant and buyer of Ready-Mix-Concrete (RMC) - As per contract, entire transaction is of Works Contract - It is also the fact that appellant being manufacturer of RMC, paying excise duty not only on value of goods but also on value of service of pumping, laying of concrete and same is included in the sale value - Therefore, no value is escaped from payment of excise duty - Merely because the contract says that it is works contract, actual nature of transaction cannot be overlooked - The appellant is treating the transaction of Works Contract in terms of VAT Act only - From the definition, it is clear that manufacturing activity of RMC cannot be covered under Works Contract by any stretch of imagination - Therefore, even though there is contract of Works Contract basically for purpose of VAT Act, cannot be applied in present transaction of manufacture and sale of goods in terms of Section 2(f) of Central Excise Act, 1944 - The department has very much accepted the activity of appellant as manufacturing and collected excise duty on entire value of RMC which includes pumping and laying of RMC at site - Therefore, department cannot take two stands, in one hand manufacturer for demanding excise duty and on same activity, on the other hand demanding service tax under Works Contract - Tribunal in case of GMK Concrete Mixing Pvt. Ltd. 2012-TIOL-137-CESTAT-DEL has held that entire exercise is sale of ready-mix-concrete and there is no service element involved so as to create service tax liability against appellant - Activity of appellant is predominantly of manufacture and sale of goods - Accordingly, same cannot be charged with service tax under Works Contract service - As regard to service tax demand on supply of tangible goods service, appellant has put forward the contention that it would be within threshold limit - The details of rent collected covered by SCN for year 2016-17 is of Rs. 1,50,000/- and 2015-16 is NIL - It would go to show that the amount related to supply of tangible goods service is within threshold limit of exemption of service tax provided under Notification No. 33/2012-ST. - Therefore, demand of service tax on supply of tangible goods services also cannot sustain - Impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1047-CESTAT-AHM
John Energy Ltd Vs CCE & ST
ST - Assessee is in appeal against demand of service tax, interest and imposition of penalty - The assessee is inter-alia engaged in supply of tangible goods service - It was stated that whenever they are providing any equipment along with expert manpower they are paying service tax as can be seen from various invoices raised by them - He pointed out in some such invoices when drill pipes are supplied along with other equipment to be handled by their own personnel then the rent of drill pipes is also included in assessable value in supply of tangible good service - In case of supply being made to M/s Cairn Energy no expert manpower was sent along with pipes and it was merely a supply of pipes to M/s Cairn Energy India Private Limited - Merely because a record of actual use of goods is kept, it does not amounts to having effective control and possession of the goods - It is also asserted by assessee that they have paid VAT on the said transaction - No merit found in the argument of Revenue, demand is therefore set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1046-CESTAT-DEL
Desmet Reagent Pvt Ltd Vs CCGST
CX - Issue involved is, whether the appellant have rightly taken cenvat credit of CVD plus cess on import of raw materials, where duty and cess have been paid by utilizing DEPB scrips - There is no disability in availing credit, where CVD and Cess have been paid by utilizing DEPB scrips - Further, there is no dispute that credit has been availed on the basis of bill of entry and certified copy of same produced before Range Authority - Appellant have rightly availed the cenvat credit - Accordingly, impugned order is set aside: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-1045-CESTAT-MUM
Murli Industries Ltd Vs CCE & C
CX - Refund of pre-deposit of amount - Resolution Plan for appellant company was approved by NCLT vide its orders dated 3.7.2019 and 22.7.2019 - It is also not disputed that aforesaid order of NCLT has been upheld by NCLAT therefore the conditions/terms as contained in order of NCLT cannot be altered and are binding - The Resolution Plan as well as aforesaid order of NCLT and the law laid down by Supreme Court in matter of Ghanshyam Mishra & Sons Pvt. Ltd. has already been taken into consideration by Tribunal while disposing of another appeal in appellant's own case vide 2022-TIOL-228-CESTAT-MUM - Appellant placed reliance on decision of a co-ordinate Bench of Tribunal in M/s. Ultratech Nathdwara Cement Ltd. 2022-TIOL-981-CESTAT-AHM in which it has been held that although in such cases appeal has become infructuous but Rule 22 cannot be said to be applicable on such cases - Decision of this very Tribunal in appellant's own case on similar facts has binding effect since as per records available, same has not been challenged by appellant before any higher forum and has attained finality - Following the same, appeal filed by appellant herein has become infructuous and abated in terms of Rule 22 of CESTAT (Procedure) Rules, 1982 - As appeal has already been abated therefore appellant cannot claim any refund before Tribunal of any pre-deposit made by them before Commissioner (A), as the power which Supreme Court/High Courts can exercise are not available with Tribunal - For that appellants are at liberty to seek redressal before appropriate forum, in accordance with law: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-1044-CESTAT-MUM
Huhtamaki India Ltd Vs CCE
CX - During audit, it was observed that appellant was issuing supplementary invoices to its customers and on supplementary invoices they were discharging duty also at the applicable rate - However, they had not paid any interest on duty paid after clearance of goods - On being pointed out, appellant paid the interest suo motu - It is apparent that in case where appellant has paid entire amount of duty due along with interest thereon, central excise officer could not have proceeded to any notice in respect of payment so made demanding the duty so paid - This is what has been held by Supreme Court in case of SKF referred to by original authority in his order - The decision in case of ACME Tele Power Pvt Ltd. 2008-TIOL-138-CESTAT-DEL does not advance the case of revenue as same is prior to decision of Apex Court in case of SKF: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-1043-CESTAT-MAD
Shree Mahaveer Impex Vs CC
Cus - Appellant filed refund claim for refund of 4% additional duty paid by them on goods imported - Original authority sanctioned the refund - Thereafter, department filed appeal against sanction of refund alleging that in two sales invoices, stamp required as per Para 2(b) of Notification No. 102/2007-Cus. is not endorsed - Appeal filed by department was allowed by way of remand with a direction to adjudicating authority to verify and reprocess the refund claim - It is pointed out by appellant that original authority after examining the invoices has made a finding that there are endorsements on sales invoices which indicated 'not eligible for CENVAT credit' - It is also noted by original authority that condition in para 2(b) has been fulfilled - The Larger Bench of Tribunal in case of Chowgule and Company 2014-TIOL-1191-CESTAT-MUM-LB has held that failure of importer to endorse on sales invoices that no credit of such additional customs duty would be admissible to buyers as stipulated under condition 2(b) of Notfn cannot be a ground to deny the refund - Even though it is alleged by department that two sales invoices did not bear required endorsement, it is not established whether these invoices verified by Review Cell are the original invoices issued to buyer by appellant - So also there is no evidence to establish that buyer had availed credit on these alleged invoices - No merits found in grounds alleged for remand of matter - Following the decision of Larger Bench of Tribunal, order passed by Commissioner (A) requires to be set aside - The order passed by original authority sanctioning the refund is restored: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-1042-CESTAT-MAD
Pr.CC Vs Viking Warehousing CFS
Cus - Assessee was ordered to pay an amount of Rs. 22,77,047/- as per O-I-O on account of pilferage of goods from their CFS without filing Bill of Entry - Assessee paid up the entire duty amount on goods illegally removed from CFS - Penalty imposed vide another OIO on assessee under Handling of Cargo in Customs Areas Regulations, 2009 for violation of said Regulations was also paid - In spite of payment of duty and penalty, Commissioner (A) has directed for remand of matter on the basis of judgment of Apex Court in Canon India Private Ltd. 2021-TIOL-123-SC-CUS-LB - When entire duty and penalty has been paid up by assessee, no grounds found to re-examine as to whether SIIB was the proper officer to issue SCN - The direction to remand the matter is totally unnecessary and uncalled for - Therefore, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
